Simonton v. State ex rel. Turman

44 Fla. 289

Opinion

Cartee, J.

(after stating the facts.)

I, The third ground of the motion to quash has not been argued, and will, therefore, be treated a;s abandoned. The fourth and fifth grounds will be considered in connection with the assignment of error questioning the jurisdiction of the Judge of the Spcond Circuit to render the final judgment. The first and second grounds proceed upon the theory that the information was brought by the relator in pursuance *of leave granted him by the Attorney-General, and that it was. necessary that relator should file a bond or security to protect the State for liability for costs. It is true a letter from the Attorney-General was attached to the information authorizing Solon B. Turman to bring an information in the nature of quo warranto in the name of the Attorney-General to test the right and title of responent to the office of Solicitor of the Criminal Court of Record of Hillsborough county, but the motion to file the information and the information itself purport to be brought by the Attorney-General in person, each, purports to be signed by him and neither is signed by Mr. Turm'an or by his attorneys. Upon the face of the proceedings they were not instituted in- pursuance of the authority granted in the letter, but were instituted directly by the Attorney-General for the double purpose of .ousting respondent from the office and having it judicially declared that Solon B. Turman, a person claiming title to the office, was rightfully entitled thereto. This ■he had a right to do under sections 1781 et seq. Revised Statutes. Under such circumstances the statute does not require a bond or security for costa from Mr. Turman .and, therefore, the first and second grounds of the motion were properly overruled.

II. The demurrer to the information was properly overruled. It was general, addressed to the entire information, and even though the information be defective in .its allegations ais to the right or title of relator Solon B Turman to the office, it does allege that respondent uses, enjoys, exercises and performs the functions of the public -office of Solicitor of the Criminal Court of Record of Hillsborough county without warrant or authority of law and charges usurpation of said office by him, and rs, therefore, sufficient to require him to show by what, right ■or authority he exercises or performs the functions -thereof as against the State. State ex rel. Attorney-General v. Philips, 30 Fla. 579, 11 South. Rep. 922. The proceeding as we have seen was- in behalf of the State through its Attorney-General and' the rule we announce above applies to such cases. Lake v. State ex rel. Palmer, 18 Fla. 501. If the respondent in an information of this nature brought by the Attorney-General in behalf of the State, can ever- take advantage of a defect in the allegations as to the title of another person claiming the office whose claim is recognized and set forth in the informa, tion he must do so in some manner other than by demurrer to the entire information.

III. The fourth and fifth grounds of the motion to quash, and the assignment of error questioning the jurisdiction of the Judge of the Second Circuit to render the final judgment will be considered' together.' As will be seen by reference to (he statement, the motion for leave to file the information, together with the information proposed to be filed with its exhibits were first filed in the Circuit Court of. Hillsborough county in the Sixth Circuit. The Judge of that Circuit being disqualified as appears from his certificate of record, application was made to the Judge of the Fifth Circuit for leave to t o the information and for the rule to- show cause, which was granted. Subsequently the motion to quash the rule and the demurrer to the information were heard and decided by the Judge of the Seventh Circuit, and thereafter the demurrer to respondents pleas ,was heard, and final judgment upon the demurrer was rendered against respondent by the Judge of the Second Circuit. The case was never transferred from Hillsborough county, bait remained pending there all the while, and each judge before whom the case was brought for hearinng undertook to act as to the several matters submitted pro hao vice only, or In other words, merely in the place and stead of the Judge of the Sixth Circuit who wasi disqualified. The several judges to whom the case was 'submitted for the several orders mentioned derived their power to act from section 1078 Revised Statutes, which provides that “whenever the judge of any court, other than the Supreme and Criminal Courts of Record ¡shall be unable from, absence, sickness or .other muse, or shall be disqualified from interest or any other cause to" discharge any duty whatever appertaining to his office which may be Required to be performed! in vacation or between terms, it 'shall be the duty of any other judge of a court of the same jurisdiction as the court in which the cause is pending, on the application of any party to perform such duties, and hear and determine all such matters as may be submitted to him and such judge may discharge such duties either in his own or- any other jurisdiction and shall be substituted in all respects in tbe place and stead in the matter aforesaid of the judge unable or disqualified to act.” It Ls argued here that a proper construction of this statute requires us to hold, that when application is once made to a judge of a particular circuit to perform a duty or to hear, and determine a matter, that might have been required to, be performed or heard and determined in vacation or between terms by a judge of another circuit, but for his disqualification to act, all matters subsequently arising for decision in that particular matter or cause must be submitted to the same judge so long as he is qualified and able to perform the duty or to hear and determine the matter to be submitted, and that such subsequent matters can not be submitted to the judge of a different circuit. A careful reading of the statute convince» us that this construction is untenable. The language is plain that it shall be the duty of any other .judge'of a court of the same 'jurisdiction, upon application of a party to a pending, cause, to perform any duty or hear and determine any matter therein which it would be the duty of the judge of the circuit in which the cause is pending to perform or to he'ar and determine in vacation but for his disqualification. In performing the duty re quired by the -statute, the judge to whom application is made, acts in the. jdace and stead of the disqualified judge, not for the purpose of hearing and deciding every matter arising in the cause, but only in respect to the particular matter submitted to him. It is also contended that the -statute is void because it confers upon Circuit Courts and Circuit Judges extraterritorial jurisdiction in violation >of section 12 Article V, constitution of 1885, and because its legal effect is to transfer a cause at law upon the application of one party only, from the circuit in which such cause is pending to the circuit of the judge who is called upon to hear and [determine a matter arising therein, in violation -of section 19 Article V, of the same constitution as interpreted by this court ’in State ex rel. Hughes vs. Walker, 25 Fla. 501, 6 South. Rep. 169, In State ex rel. Florida Pub. Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614. the constitutionality of the statute •in question was upheld as against the contentions now made in this cause, and we are satisfied that decision is correct. It is claimed, however, that in that case the question was simply whether the statute was eonstitu tional in so far as it applied to the hearing and determination of a demurrer to a declaration, while in the present case the Judge of the Second Circuit proceeded to render a final judgment against respondent. It is true the two cases differ in the respect pointed out, but we think they are both controlled by the same principles. In either cáse tfoeire is no transfer of the cause, nor exercise of extraterritorial jurisdiction. The judgment in this case was a judgment final upon demurrer to the respondent’s pleas, no leave to plead over being requested or given. It was lawful to hear and decide the demurrer to pleas in tbiw case, and to render the proper judgment upon such demur rer, in vacation or between terms. The power to hear and determine a demurrer, which was affirmed in the case mentioned (State ex rel. Florida Pub. Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614.) necessarily involves and includes the power to render the jn-oper judgment upon that demurrer, in all cases where such judgment can lawfully be entered in vacation or between terms. We think the statute' gave power to the several judges pro hao mee to hear and determine the matters submitted to them in the present case, and power to the Judge of the Second Circuit pro hao.vioe to render final judgment against respondent, and that 'the statute is constitutional.

IV. Exhibit “B” attached to the information, and referred to therein^® the commission under which it is alleged that relator Solon B. Turman is entitled1 to hold the office of County Solicitor for'four years from its date, June 8th, 1899. This commission, purports to have been issued- in pursuance of an appointment of the Governor confirmed by the Senate, for the unexpired term of Peter O. Knight, resigned, which term according to the recitals in the commiission and the allegations of some of the pleas expired April 27th, 1901. Each of the pleas of respondent, except the first, alleges that on April 27, 1901, respondent was duly appointed to said office and confirmed by the Senate, for four years from said date, and his commission- reciting these facts is- referred to- and attached as an exhibit to some o-f the pleas. There is no denial in any of the plea® that the facts recited in Turman’s commission are true, and in determining the propriety of the ruling on the demurrer to> the pleas (except the first), we muis-t consider a® true the facts recited in Turman's commission as well as the facts alleged in the pleas and shown by the exhibits. Relator, under the demurrer to the pleas, contends that although his appointment, confirmation and commission purports to be limited to¡»the unexpired term of Peter 0.-Knight, resigned, to-wit: until April 27th, 1901, yet that under the constitution he is entitled to hold the office for four years from the date of his commission, viz: until June 8th, 19.08; and, that consequently the appointment of respondent', on April 27, 1901, was. void, and conferred, no right- to the office on him. To this contention we will now address ourselves. Before quoting the provisions of the present constitution bearing upon the subject, it may be well to refer to certain provisions in the constitution of 18G8, and the construction pieced by this court thereon. Section 7, Article VI, of that constitution, provided that “there ¡shall be seven Circuit Judges appointed by the Governor and confirmed by the Senate who shall hold their office for eight years.” Section 7, Article V, provided that “when any office from1 any cause shall become vacant, and no •mlode is provided by this constitution, or by the1 law's of the State for filling such vacancy, the Governor .shall have the power to fill such vacancy by granting a ¡commission which shall expire at the next election. In the Executive Communication of January 19,1877.16 Fla. 841, the court in answer to the question whether under that constitution and the laws, a Judge of the Circuit Court, appointed by the Governor and confirmed by the Senate held hi>s office for eight,years in a case where there had been a. previous incumbent who, while appointed for eight' years, had filled the office only for a part of that time, and whether, in ¡such case the second incumbent, appointed and confirmed in. conformity ter constitutional authority before the expiration of the time for which a previous incumbent had been appointed held hi® office for the full time of eight years, or for the balance of the unexpired time for which the first incumbent was to hold, isaid “the language of ¡the constitution is plain and simple; ‘there shall be seven Circuit Judges appointed by the Governor and confirmed by the Senate, who ¡shall hold their office for eight years.’ * * * There is nothing in this which limits the time of service of one appointee' by reference to the time served by a previous one. The plain literal construction of that section is, that whenever the two acts, appointment by the Governor and confirmation, by the Senate unite, the result is the party is entitled to the office anld the express declaration is that he shall hold the office for ei-ght years. Unless, therefore, there is some other provision of the constitution limiting or otherwise explaining this language it must have its usual and ordinary effect. There is nothing here establishing a term of office to exist between fixed dates of months or years, nor te there anything having the most, remote reference to an unexpired term, or to a vacancy in an office as' distinct from the offic<e itself. There is no other provision of the constitution which changes or affects this section. ■The only general clause of the constitution referring to vacancies in office is that found in section 7, Article V, and-this court has heretofore held (13 Fla. 12) that the power there granted is .not a powér to fill an unexpired term, but to fill a special vacancy, embraced in the period between the finite at which the office is made vacant and the filling of the office by an election. This section,' too, relates exclusively to vacancies in elective offices.” The conclusion reached wais.fhat a Judge of a Circuit Oouirt, appointed by the Governor and confirmeidl by the Senate held his office for eight full years, and that no part of a previous eight years during which another had held the office (but who had vacated it) entered into the compu tation of time for which the second appointee held. The offkei of Oonnty Solicitor was first created or recognized in this State by the constitution of 1885, but it is contended that the ¡same construction should be applied to the language of that constitution relating to his office as was applied to the language of the constitution of 1868 relating to the office of Circuit Judge. If so, it is clear that relator, when appointed by the Governor and confirmed by tbe Senate in 1899, was rightfully entitled to bold the office for four years, and that the ¡subsequent appointment of respondent in 1901, before the expiration of that period, was unauthorized and void.

The office of County Solicitor is provided for by section 27, Article V, constitution of 1885, a.s follows: ■ “There shall be for each of said courts a Prosecuting Attorney who ■shall be appointed by the Governor 'and 'confirmed by tbe Senate, and who shall hold his office for four years.” This language is very similar to that employed in the constitution of 1868, with reference to the Circuit Judge, and almost identical ’ with that employed in- the constitution of 1885, with reference to Circuit and Criminal Court Judges, vis: “There shall be seven Circuit Judges who shall be: appointed by tbe Governor and confirmed by the Senate and who shall bold their office for six: years” (Section 7, Article V); “there shall be one judge for each of said courts who shall bei appointed by the Governor and confirmed-by the Senate, who shall hold his office for four years” (Section 24 Article V), and yet we know' to a certainty that this language with reference to Circuit and Criminal Court Judges "was not intended to bear the samie construction as similar language with reference to Circuit Judges in the constiinrion of 1S68, because it is expressly provided by section 33 Article Y, that “when the office of any judge shall become vacant from any cause1, the successor to fill such vacancy shall he appointed or elected .only for the unexpired term of the judge whose death, resignation, retirement or other-cause createdl such vacancy,” thereby distinctly recognizing unexpired terms in the offices of such judges-, and confining their-successors to- fill vacancies to the unexpired term. It must be admitted, however, that .section 38 has-no reference to County Solicitors, and if there is no other provision in the constitution limiting or explaining the. language used in section 27 with reference to such officer, the same construction- must be applied to this language as was given io that used with rfeerence to . Circuit Judges in- the .eoa-sGtution of 1868. Turning now to section 7. Article LV, constitution- of 3885, we find that it 'is a revision of section 7, Article V, of the constitution of .1868, and -the change of language is significant “When any 'office, from any canse, shall become vacant, and no mlo'de is provided by this constitution or by the laws of' the State for fillijng such vacancy, the Governor shall have the power to fill -such vacancy by granting a commission for the unexpired term.” As it now readls it is applicable to appointive as wel‘1 as elective officers, and it recognizes and provides for filling unexpired terms- (see State ex rel. Robert v. Murphy, 32 Fla. 138, text 164, 13 South. Rep. 705), while the original section before revision applied only to elective offices, had no application to unexplired terms, and provided only for filling a special or limited vacancy, by providing an incumbent for that period of time existing between the happening of the vacancy and the next election. State ex rel. Weeks v. Gamble, 13 Fla. 9; State ex rel. Weeks v. Day, 14 Fla. 9; Executive Communication, 14 Fla. 277; Executive Commu ideation, 16 Fla. 841. The original section had reference to a mere locum t&nens, for a part'¡of a vacancy in elective offices, nothing more. The revised section deals with vacancies in office generally, its language is broad enough to include thaNof County Solicitor, and the vacancy recognized and provided for is the .entire period beginning with' the happening of the event which leaves the office without an incumbent, and ending with the expiration of the term1 of the former incumbent.. It has no, reference to filling the ¡office for a new term of for, the constitutional, period, but for the unexpired term only, and there can be no difficulty whatever in applying it to the office of County Solicitor who holds for a fixed period, to-wit, fouryearseven though in the section creating the office, terms ¡of office, in contradistinction to terms of the officer, have not been prescribed in technical language. Neither Circuit nor Criminal Court Judges are in technical language declared to hold terms of office a® distinguished from term's of the officer, and there would be as much reason for holding that the words “any judge” used in 'section 38, Articule Y, should not be applied to Circuit and Criminal Court Judges for this reason, but ratber should! be restrained to Supreme and County Judges and Justices of the Peace who are the only Judges give7i fixed terms of office, by the' constitution, as to say that the word® “any office” used in section 7, Article IY, were not intended to embrace County Solicitors. Such a construction as to Circuit and Criminal Court Judges could be reached by arguing that'as ¡section 33 does not in terras purport to create terms of office for them and. the language of the sections relating to them being insufficient to create terms of office, the expression “any judge” must be construed to refer to those judges for whom terms of office are ex press'ly created, viz: ¡Supreme and County Judges, and Justices of the Peace, but such- a .construction would be based upon narrow and technical grounds, and would bé. manifestly contrary to the obvious meaning of the constitution which plainly intend® that successor® to fill vacancies' in the offices of all judges, shall hold for the balance of the time that the predecessor in office might have held under his original appointment or election. Neither section 33, Article Y, nor section 7, Article IV, purport to create terms of office, but they do recognize un* expired terms in office. They each relate to vacancies in office,- and to the filling of such vacancies for the unexpired term. They have no reference to the regular expira-' tion of terms, nor to filling offices for new or full terms, •but are limitations upon the power to fill the office for a new or full term upon the happening of a vacancy which power would exist in the absence of istucb provisions, or of •other provisions creating technical terms of office. The •construction given to the provisions of the former constitution in the Executive 'Communication before referred to is obviously correct, but it can not be doubted that the change of language in the seventh ¡section of the Executive Article was made with ¡special reference to unexpired terms and when this revised section is read in connection with the Executive Communication it is apparent that the change was made designedly with a view of removing the objections advanced in that communication against holding that the provision a® it then stood, imported the element of an unexpired term into the office of Circuit Judge. That this change of language means something, can not he denied, but in view of the construction placed upon the original setciom in connection with offices held for a fixed time btit'not having technical terms of. office ' affixed to them, the conclusion iseemis irresistable that it was intended by this amendment to recognize the element of an unexpired term in all offices created by the constitution where a fixed definite period of holding was allotted to the incumbent, whether called technically terms of office or terms of the officer. That the general spirit of the constitution is to recognize this element of an unexpired term in all offices! created thereby, where a definite time of holding is prescribed, is made manifest by the provisions of sectiom 33 Article Y, with regard to unexpired terms of judges, and by sections 6 and 7, Article XVIII, which provides', “the term of office for al-1 appointees to fill vacancies in any of the elective offices under this constitution shall extend only to the election and qualification of a successor at the ensuing general election.” “In all cases of elections to fill vacancies in office, such election shall be for the nnexpired term.” When 'it is remembered that these provisions include every appointive and elective .officer, holding for a fixed period of time mentioned in the constitution except'county commissioners, who however were clearly given termls of office by other provisions, and State Attorneys and County Solicitors, and they include some elective officers who hold for only two years, and whose successor® in cases of vacancies in the offices could not be elected until the month of November preceding the expiration of the term of office in January following, it will he perceived that there was a general purpose tO' secure uniformity in the period ¡of the holding of successors to fill vacancies in every,office having a fixed period of holding either elective or appointive, confining stick ¡successor to the nnexpired term, or time.of his predecessor. If it had been intended to except County Solicitors from this general purpose, made more1 manifest by this change of language in section 7 of the Executive Article, it seems reasonable to suppose they would have been expressly excepted from, its provisions, but nowhere in the constitution do. we find any evidence of ’such an intention. Reading section 7 of Article IV in connection with ®ection 27, Article V, in the light of the decisions under; the const’tution of 1868, the change of language of section 7 to meet.the objections urged in those decisions, and the general purpose manifested throughout the entire constitution as revised to import into offices held for fixed periods the element of unexpired term® in cases of vacancy, we must conclude that vacancies in the office of County Solicitous happening before the expiration of the time, to-wit four years fixed by the constitution as the period of holding, must be filled for the unexpired term, and not by a new appointment for a new or a full term. This construction gives effect to both section®, makes the term of appointees to fill vacancies! in such offices uniform' with other offices held for fixed periods, and gives effect to the manifest purpose of the constitution, while the opposite conclusion can be reached only by reasoning upon narrow and extremely technical grounds, and by holding that section 7 does not apply in any case to the office of County Solicitor, because there can be no such vacancy in that office as 5 • contemplated in that section. If that section does not apply to the office of County Solicitor then if the Senate is not in session when a vacancy in that office happen®, and the legislature has not provided for a locum temrm until the next session of the Senate, a constitutional office, indispensable to the business of a «court required by section 26, Article V, to hold six terms in each year, mtust remlain vacant until the next .eessibn of the Senate, which might not meet for nearly two years. It can not be presumed that such a result was contemplated by the constitution, especially where it contain® no provision requiring the legislature to. pasts laws upon the subject of vacancy in' office. It ought rather to be inferred that section 7, Article IV, was inserted with specia] reference to vacancies in- all ¡offices not otherwise especially provided for, in order that the failure of the legislature to act, might not operate so a® to leave the important constitutional offices vacant, and to provide by that'' section for filling them. Under tlie construction we adopt tsuch a result can not occur. The original power to fill an office, includes the power to fill a.n unexpired term in that office, or ats the idea is expressed in State ex rel. Weeks v. Gamble, 13 Fla. 9, text 16, the power to fill the unexpired term is a part of the original power to appoint vested by section 27- Article V in the Governor .and Senate. When a vacancy happens during a session of the Senate as wats the case when the relator was appointed in 1899, the vacancy for the unexpiretd term is properly filled by the Governor and Senate under the ■original power, and not by the Governor alone under section 7, for the reason that a mode is; otherwise provided by the constitution for filling the Vacancy for the unexpirted. term, to-wit: the original power granted by section 27, Article V. If the vacancy happens when the Senate is not in session, and there is no statute providing for a locum, (evens until the Senate meets again, the Governor appoints for the unexpired term under ' Section 7, Article IV, because no other mode is provided for filling that vacancy by the constitution and laws. • Under the present statute, however, section 217 Revised Statutes, it would b6 the duty of the Governor to appoint, and such appointee would hol'd until the end of the next ensuing session of the Senate unless an appointment should be sooner made and confirmed, or consented to by the Senate (Executive Communication, 14 Fla. 277), and when the Senate next met it would be the duty of the Governor and Senate to fill the office fon the unexpired term uuder dthe original power to appoint. With this statute in force the Governor could not grant a commission under section 7, Article IV for "the unexpired term, for the reason that in such a case the statute and the constitution together would provide a mode of filling the vacancy for the unexpired term.. The original power granted to the Governor and Senate by section 27, Article Y is ample not only to fill the office for new or full terms, but to fill vacancies occurring before the expiration of the term, hut in the one case the duration of the appointment lasts, for four years, while in the other its duration i® limited to the expiration of the time for which the original' incumbent might have,held if no vacancy had occurred-

From wihiat has been isai-d, it follows that the relatar was properly appointed and confirmed as successor of Peter 0. Knight, resigned, for the Unexpired term, and not for four years, and that the appointment and confirmation. of respondent at the expiration of that time was legal, and consequently that the: demurrer to the second, third, fourth, fifth and sixth pleas of respondent should have been overruled. Counsel have not specially argued the propriety of the ruling upon the demurrer totbe first plea, and, therefore, we shall not express an opinion upon that question.

The judgment is reversed, and- the cause remanded with directions that the demurrer to the pleas numbered from 2 to 6 be overruled, and that such further proceedings he had as may be conformable to law.